Decision Date: 10/23/95 Archive Date:
11/04/95
DOCKET NO. 88-53 434 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to secondary service connection for retinitis
pigmentosa.
REPRESENTATION
Appellant represented by: Blinded Veterans Association
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Mark J. Swiatek, Counsel
INTRODUCTION
The veteran served on active duty from February 1943 to May
1945.
The appeal arose from a May 1988 decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Muskogee,
Oklahoma that new and material evidence to reopen a claim of
service connection for retinitis pigmentosa had not been
submitted. In February 1989 and September 1990 decisions,
the Board of Veterans' Appeals (Board) remanded the case to
the RO for additional development in view of unique
circumstances of the case. In February 1989, the Board,
noting the essence of the veteran's claim that his retinitis
pigmentosa had been aggravated by medication prescribed for
his service-connected duodenal ulcer disease, pointed out
that the regulations then in effect did not allow for
consideration of secondary service connection of the basis
of aggravation, and that for due process considerations, the
claim should be reviewed under 38 U.S.C.A. § 1151 (formerly
§ 351) criteria, thus providing an alternative basis for a
decision on the merits. The RO was to address the question
of whether the medication prescribed for the service-
connected duodenal ulcer disease caused aggravation of
retinitis pigmentosa and whether such medication had been
negligently prescribed. A second remand was required in
September 1990 to ensure that the veteran was provided due
process in consideration of the 38 U.S.C.A. § 1151 claim.
In November 1991, in another case, the United States Court
of Veterans Appeals (Court) invalidated 38 C.F.R. §
3.358(c)(3). Gardner v. Derwinski, 1 Vet.App. 584 (1991).
In February 1993, the veteran was advised by the Board that
his case was being returned to the RO pursuant to a
department-wide stay in the adjudication of claims for VA
benefits under 38 U.S.C.A. § 1151 (West 1991). The Court's
decision was affirmed by the United States Court of Appeals
for the Federal Circuit in Gardner v. Brown, 5 F. 3rd 1456
(Fed. Cir. 1993), and, thereafter, by the United States
Supreme Court (Supreme Court). Brown v. Gardner, ___U. S.
___, 115 S.Ct. 552 (1994). In December 1994, the General
Counsel of the VA issued a memorandum to the Under Secretary
for Benefits that provided advice regarding the adjudication
of claims that clearly could be allowed under the Supreme
Court's Gardner decision, should the adjudication of such
claims be resumed before the Attorney General's opinion was
obtained and VA's regulation revised. In January 1995, this
memorandum was redesignated as O.G.C. Prec. 23-94. In view
of the foregoing, the Board, in January 1995, lifted its
stay on the adjudication of Gardner claims for benefits
under 38 U.S.C.A. § 1151. 38 U.S.C.A. § 7104(c). The RO
reviewed the § 1151 claim in February 1995. The case was
returned to the Board in July 1995 and has since been
referred to the undersigned Member of the Board for further
review of the matter in appellate status.
REMAND
The Board observes that in February 1995, the RO obtained a
VA medical opinion on the question of whether retinitis
pigmentosa was caused by Pro-Banthine. All along in this
appeal, it has been noted by the Board that the veteran has
claimed, in essence, that his retinitis pigmentosa had been
aggravated by medication prescribed for his service-
connected duodenal ulcer disease. That contention was
restated by the veteran in a September 1991 communication to
the RO, and by his representative in a June 1995 written
presentation on behalf of the veteran. In the latter, the
medications are identified as Pro-Banthine, Phenobarbital
and belladonna, "or their derivatives". This contention
takes on a new significance in view of the Court's decision
in Allen v. Brown, 7 Vet.App. 439 (1995). In Allen, the
Court held that the aggravation of a non-service-connected
disability by a service-connected disability may be a proper
basis for compensation for the degree of disability over and
above the degree of disability existing prior to the
aggravation. As such, we have recharacterized the issue
again as a secondary service connection issue. A question
concerning the negligent prescription of medication no
longer exists.
The Board has reviewed the February 1995 VA medical opinion
and finds that it is inadequate for an informed decision in
light of Allen. Additionally, we note that it is likewise
inadequate even if the issue continued to be characterized
as a claim for compensation benefits pursuant to the
provisions of 38 U.S.C.A. § 1151. It does not address the
principal contention of aggravation.
In view of the foregoing, the Board finds that additional
development is required in order to provide a record upon
which an informed determination of the issue on appeal can
be made. Accordingly, the case is REMANDED to the RO for the
following development:
1. The veteran should be contacted and asked to provide the
names and addresses of all VA and non-VA health care
providers who have treated him for retinitis pigmentosa and
a gastrointestinal disability since service. After
obtaining the appropriate release for medical information,
the RO should request all records which have not been
previously obtained and associate them with the claims
folder.
2. Thereafter, the veteran should be scheduled for a VA
ophthalmology examination which should, if possible, be
conducted by an examiner who has not previously evaluated
the veteran in connection with the appeal.
The examiner is requested to review the claims folder and
provide an opinion regarding the following questions: (1)
was any worsening of the veteran's retinitis pigmentosa
observed, due to the "natural progress" of the disorder; (2)
or did the medication prescribed for his service-connected
duodenal ulcer disease "aggravate" the retinitis pigmentosa;
that is, to what extent, if any, is the retinitis pigmentosa
worse because of the treatment for the duodenal ulcer
disease with Pro-Banthine, Phenobarbital, belladonna, "or
their derivatives". The examiner should provide a rationale
for all opinions and conclusions expressed.
3. Then, in light of the evidence obtained pursuant to the
requested development, the RO should readjudicate the issue
on appeal as a secondary service connection issue on a de
novo basis with consideration of Allen v. Brown.
If the benefit sought is not granted, a supplemental
statement of the case should then be prepared and furnished
to the veteran and his representative. They should be
provided the applicable period in which to respond.
Thereafter, in accordance with the proper appellate
procedures, the case should be returned to the Board for
further appellate review, if otherwise in order. In taking
this action, the Board implies no conclusion, either legal
or factual, as to any final outcome warranted. No action is
required of the veteran until he is otherwise notified by
the RO.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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